Opinion of the Court.

by the statute of 1848 upon the court to order the sale of escheated land, if such, indeed, can be held to be the proper construction of this statute in view of the conflicting provisions of its different sections." 41 Texas, 18, 19.

But the weight of that suggestion is much lessened, if not wholly counterbalanced, by several considerations. The decision in that case was put upon the distinct ground that the petition and the proof were both insufficient. In another case, decided at the same term, in which the opinion was delivered by the same judge, as well as in an earlier case of a writ of error to review the very judgment now pleaded, and in at least two later cases, above cited, in each of which this proposition, if sound, would have been decisive, it was not even mentioned. State v. Teulon, 41 Texas, 249; Brown v. State, 36 Texas, 282; Wiederanders v. State, 64 Texas, 133; Ilanna v. State, 84 Texas, 664. And after the constitution of 1869 had been in force for ten years, the legislature, in revising and codifying the statutes of the State, reënacted all the material provisions of the act of 1848, both as to obtaining a judgment declaring the land to have escheated, and as to a subsequent sale of the land by the sheriff; and clearly manifested its understanding and intention that the provisions for such a sale did and should remain in force, by prefixing the words "The proceeds of" to the last section, which had directed "all property escheated in accordance with the provisions of " the act to "remain subject to the disposition of the State, as may hereafter be prescribed by law." Rev. Stat. of 1879, § 1785.

The plaintiffs somewhat relied on art. 10, sect. 6, of the constitution of 1869, which provides that "the legislature shall not hereafter grant lands to any person or persons, nor shall any certificates for land be sold at the land office, except to actual sellers upon the same, and in lots not exceeding one hundred and sixty acres." 2 Charters and Constitutions, 1816. But this evidently relates only to legislative grants of land, and not to judicial proceedings to declare and enforce escheats. Even if the suggestion in Hughes v. State, above cited, that art. 4, sect. 20, of the constitution of 1869, relating to the

VOL. CLXI-18

Opinion of the Court.

comptroller of accounts, "is in conflict with, and therefore revokes, the authority conferred by the statute of 1848 upon the court to order the sale of escheated land;" should be considered as well founded, it would affect only section 11 of the statute, authorizing the sale, and so much of the subsequent sections as concern that subject; and would leave unaffected the preceding sections, providing for a judgment to be rendered, upon due allegation and proof, and after notice to all persons interested, ascertaining and declaring that the land has escheated to the State, and vesting in the State the title to the land. The provisions looking to a judgment vesting title to the land in the State are distinct and severable from the provisions for a sale, and a conversion into money, of the land after it has vested in the State; and if the latter provisions are for any reason invalid, they may be considered as stricken out, and the former provisions stand good. Field v. Clark, 143 U. S. 649; Zwernemann v. Von Rosenberg, 76 Texas, 522. And the judgment set up in the answer in this case, so far as it determined that the title of the land had vested by escheat in the State, was valid, even if the order for a sale of the land was not. Ludlow v. Ramsey, 11 Wall. 581.

It follows that, if the sale and conveyance by the sheriff to the defendants were invalid and vested no title in them, the previous judgment, ascertaining and declaring the escheat, vested a good title in the State of Texas against all persons claiming as heirs or devisees of the former owner; and that judgment, although it does not prove the title to be in the defendants, proves it to be out of the plaintiffs, and affords a complete defence to this action. Love v. Simms, 9 Wheat. 515, 524; Christy v. Scott, 14 How. 282, 292; Doswell v. De La Lanza, 20 How. 29, 33.

As to personal property, indeed, a judgment in rem, after notice by publication only, might not bind persons who had no actual notice of the proceedings, unless the thing had been first seized into the custody of the court. The Mary, 9 Cranch, 126, 144; Scott v. McNeal, 154 U. S. 34, 46; Hilton v. Guyot, 159 U. S. 113, 167. But it was within the power of the legislature of Texas to provide for determining and quieting the

Syllabus.

title to real estate within the limits of the State and within the jurisdiction of the court, after actual notice to all known. claimants, and notice by publication to all other persons. Phillips v. Moore, 100 U. S. 208, 212; Arndt v. Griggs, 134 U. S. 316; Hardy v. Beaty, 84 Texas, 562, 569.

When a man dies, the legislature is under no constitutional obligation to leave the title to his property, real or personal, in abeyance for an indefinite period; but it may provide for promptly ascertaining, by appropriate judicial proceedings, who has succeeded to his estate. If such proceedings are had, after actual notice by service of summons to all known claimants, and constructive notice by publication to all possible claimants who are unknown, the final determination of the right of succession, either among private persons, as in the ordinary administration of estates, or between all persons and the State, as by inquest of office or similar process to determine whether the estate has escheated to the public, is due process of law; and a statute providing for such proceedings and determination does not impair the obligation of any contract contained in the grant under which the former owner held, whether that grant was from the State or from a private person.

Judgment affirmed.

DAVIS v. ELMIRA SAVINGS BANK.

ERROR TO THE COURT OF APPEALS OF THE STATE OF NEW YORK.

No. 415. Argued January 13, 14, 1896. Decided March 2, 1896.

Section 130 of chapter 689 of the laws of New York of 1892, providing for the payment by the receiver of an insolvent bank, in the first place, of deposits in the bank by savings banks, when applied to an insolvent national bank, is in conflict with § 5236 of the Revised Statutes of the United States, directing the Comptroller of the Currency to make ratable dividends of the money paid over to him by such receiver, on all claims proved to his satisfaction, or adjudicated in a court of competent jurisdiction, and is therefore void when attempted to be applied to a national bank.

Statement of the Case.

IN March, 1893, the Elmira National Bank, a banking association organized under the laws of the United States, and doing business in the State of New York, suspended payment, and the Comptroller of the Currency of the United States appointed Charles Davis, plaintiff in error, the receiver thereof. The Elmira Savings Bank, which was incorporated under the laws of the State of New York, from November, 1890, kept a deposit account with the Elmira National Bank, and at the time of the appointment of the receiver of the latter corporation there was to the credit of this account of the Savings Bank the sum of $42,704.67. The opening of the deposit account by the Savings Bank was sanctioned by the general banking laws of the State of New York, as expressed in sections 118 and 119 of chapter 689 of the laws of 1892, which were as follows:

66

2 Laws of 1892, p. 1898, c. 689. "§ 118. AVAILABLE FUND -The trustees of every

FOR CURRENT EXPENSES, HOW LOANED.

such corporation shall as soon as practicable invest the moneys deposited with them in the securities authorized by this article ; but for the purpose of meeting current payments and expenses in excess of the receipts, there may be kept an available fund not exceeding ten per centum of the whole amount of deposits with such corporation, on hand or deposit in any bank in this State organized under any law of this State or of the United States, or with any trust company incorporated by any law of the State; but the sum so deposited in any one bank or trust company shall not exceed twenty-five per centum of the paidup capital and surplus of any such bank or company.

Ib. "8119. TEMPORARY DEPOSITS. - Every such corporation may also deposit temporarily in the banks or trust companies specified in the last section the excess of current daily receipts over the payments, until such time as the same can be judiciously invested in the securities required by this article.

In the process of liquidating the affairs and realizing the assets of the National Bank all its circulating notes were provided for, and the receiver had on hand in cash for distribution among its creditors a sum exceeding the amount due as afore

Statement of the Case.

said to the Savings Bank. Thereupon the latter demanded of the receiver payment of the sum to the credit of its deposit account in preference to the other creditors of the National Bank, basing its demand on a provision of the general banking law of the State of New York, which is as follows:

Ib. 1903. "§ 130. DEBTS DUE SAVINGS BANKS FROM INSOLVENT BANKS PREFERRED. - All the property of any bank or trust company which shall become insolvent shall, after providing for the payment of its circulating notes, if it has any, be applied by the trustees, assignees or receiver thereof, in the first place, to the payment in full of any sum or sums of money deposited therewith by any savings bank, but not to an amount exceeding that authorized to be so deposited by the provisions of this chapter, and subject to any other preference provided for in the charter of any such trust company."

The receiver, under the authority of the Comptroller of the Currency of the United States, declined to accede to this demand, predicating his refusal on the provisions of sections 5236 and 5242 of the Revised Statutes of the United States, which are as follows:

"5236. From time to time, after full provision has been first made for refunding to the United States any deficiency in redeeming the notes of such association, the Comptroller shall make a ratable dividend of the money so paid over to him by such receiver on all such claims as may have been proved to his satisfaction or adjudicated in a court of competent jurisdiction, and, as the proceeds of the assets of such association are paid over to him, shall make further dividends on all claims previously proved or adjudicated; and the remainder of the proceeds, if any, shall be paid over to the shareholders of such association, or their legal representatives, in proportion to the stock by them respectively held."

"§ 5242. All transfers of the notes, bonds, bills of exchange or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees